Chapter 5: Law and regulation

Abstract

5.1 Using the law to promote adaptation 5.2 Land use and zoning 5.3 Environmental impact statements 5.4 Energy 5.5 Transportation 5.6 Water 5.7 Communications 5.8 Other issues: Air quality, hazardous waste, and emergency preparedness 5.9 Conclusions and recommendations This chapter examines a wide range of current environmental laws and regulations at all levels relevant to New York City to determine their applicability to climate change adaptation efforts, and also examines some basic legal frameworks that govern infrastructure, which also need to adapt (see CPL, Appendix C, for further information). Laws applicable to New York City are enacted by legislative bodies, the U.S. Congress, the New York State Legislature, and the New York City Council. Regulations, as the term is used in this chapter, are issued by governmental agencies or authorities and have the force of law and may be issued in many forms, including rules, orders, procedures, and administrative codes (Table 5.1). The chapter discusses initiatives New York City has already undertaken and also suggests additional measures that might be useful in fostering adaptation to climate change. New laws and regulations and an examination of legal and regulatory impediments may be required that reflect the changes to the city's environmental baselines and the environment in which infrastructure is operating; however, this was beyond the scope of this work. The chapter has nine sections in addition to this introduction. First, there is a discussion of using law to promote adaptation to climate change. This is followed by a discussion of law and regulation related to land use—a body of law and regulation that determines much of the how, where, and what of the built environment and can significantly influence the degree of vulnerability of infrastructure. Then there is an assessment of the role of environmental impact statements (EISs) at the federal, state, and local levels. Next are four sections dealing with the infrastructure sectors that are the focus of the New York City Climate Change Adaptation Task Force. These sectoral discussions generally correspond to the four working groups used by the Task Force, except that material dealing with parks is primarily in section 5.2.1 Finally, there is a section on several other areas of law, including air quality, hazardous waste, and emergency preparedness, that are significant in planning adaptation to climate change. (Insurance issues and the ramifications of some of the insurance programs established by law, such as the National Flood Insurance Program, are discussed in Chapter 6 of this report.) A section of Conclusions and Recommendations completes the chapter. The intent of this chapter is to provide a broad outline of the principal areas of the law that can be explored to advance adaptation measures. A complete menu of possible revisions or an identification of all laws and regulations at the federal, state, and local levels, which might be useful to an adaptation analysis, is beyond the scope of the chapter, and indeed many of the investigations required to undertake such a comprehensive review remain to be implemented. The focus of the chapter is on how legal avenues can foster adaptation by reducing vulnerability, increasing resilience, enabling effective preparation for disasters, and increasing capacity to respond to disasters; this section provides an overview of this approach. The analysis recognizes the need to adapt existing laws or develop new law to maintain flexibility in the future in line with the risk management perspective described in Chapter 2. Measures and laws that mitigate greenhouse gas (GHG) emissions are not included in this discussion unless they also significantly serve adaptation purposes, as many do. Many steps generally viewed as mitigation actions are also of great importance for adaptation, and the co-benefits make the adoption of such measures all the more compelling.2 While immediate disaster management can to some extent be considered a separable problem from climate change, long-term adaptations to climate change can significantly reduce the challenges of disaster management. The discussion of laws and regulations in this chapter relates to the Climate Protection Levels (CPL) workbook (Appendix C).3 CPLs are defined by the New York City Panel on Climate Change (NPCC) as climate-based, expert-determined benchmarks that are achieved through the implementation of design and performance standards with the express purpose of limiting the climate change risk exposure of critical infrastructure. CPL measures are designed to limit climate risk exposure of critical infrastructure to socially acceptable levels. Perhaps the most general way of stating it is best: the legal system will be involved in many phases of assessing climate protection levels. The ongoing risk dialogue among all stakeholders will include a number of participants from the legal system. Setting climate protection levels also involves applying design and performance standards to which the infrastructure is built and managed, and here again, legal activity will be woven into the process. An important perspective, however, is that while there are many promising avenues of improving adaptation through law and regulation, all of these will require significant legal and administrative effort to be implemented effectively. The NPCC recommends several follow-on activities, such as formal reviews of existing laws that require legal attention. Some of this discussion is presented in the CPL workbook (Appendix C), which examines risks posed by coastal flooding and storm surge, inland flooding, heat waves, and extreme wind events and highlights areas where climate change may necessitate changes to existing design standards.4 An example of risk for which close examination is necessary is what variant of the 1-in-100 year flood could be used as a new design and performance standard. Also required are engineering-based studies, which will provide the foundation for ongoing legal activity. Finally, current policy gap assessments study ways to further ensure climate protection through closing these gaps, work which must also be informed by legal considerations. Laws and regulations offer significant opportunities for advancing adaptation to climate change. In many instances, current laws already further that goal and require only new tailored agency guidance or requirements. Other laws and regulations are promising but require amendment to effectively promote a climate-resilient New York City. To handle the legal aspects of climate change adaptation, the law must be flexible and responsive as science evolves and more information becomes known about the actual impacts on specific communities. Where possible, laws and regulations could be crafted to facilitate ready adjustments to unfolding realities; this will help to reduce legislative or administrative delays and facilitate the use of the Flexible Adaptation Pathways introduced in Chapter 1 and the Adaptation Assessment Guidebook (AAG).5 Where that is not possible, any recommendations implemented could be reviewed and revised on a periodic basis, to address the latest scientific predictions provided by scientists, at the level of certainty determined by the decision makers. In assessing the level of certainty necessary to trigger adaptations, if changes that permit appropriate responses to new facts are not already drafted into the law, adaptations can be significantly hindered. Accordingly, serious consideration could be given to the desirability of applying the precautionary principle as specific policy decisions are made and alternatives are considered. As the precautionary principle provides, “where threats of serious or irreversible damage to people or nature exist, lack of full scientific certainty about cause and effect” should “not be viewed as sufficient reason … to postpone measures to prevent the degradation of the environment or protect the health of …[the] citizens. Any gaps in scientific data uncovered by the examination of alternatives …[should] provide a guidepost for future research, but …[should] not prevent protective action being taken…”6 Thus, reasonable, prudent, and feasible measures should not necessarily be deferred pending scientific narrowing of uncertainty ranges. Laws and regulations relating to adaptation to climate change are in a state of flux at all levels of government. For example, federal law is being developed to address adaptation, and it is now an integral part of the discourse on national climate change policy. On June 26, 2009, the United States House of Representatives passed the American Clean Energy and Security Act of 2009, H.R. 2454 to, among other objectives, address climate change. It devotes significant attention to adaptation measures. Among other important steps, the bill directs that the National Oceanic and Atmospheric Administration (NOAA) develop and distribute forecasts and warnings relating to climate change and establish a National Climate Service. It distributes emission allowances to the states for building resilience to the impacts of climate change, requires that states develop a climate change adaptation plan as a condition of receiving allowances, and provides for the President to establish a natural resources climate change adaptation panel. The bill also requires the Secretary of Health and Human Services to promulgate a national strategy for preparing for and responding to the public health effects of climate change, and it creates an International Climate Change Adaptation Program to address international adaptation issues by providing U.S. assistance to the most vulnerable developing countries for adaptation to climate change. The bill does not address the role of cities and local governments in responding to climate change or developing and enacting adaptation strategies. As large cities are responsible for the development and enforcement of many of the legal levers that foster adaptation, including zoning, energy, and building codes as well as emergency management, they have an important role to play in developing effective adaptation strategies and should have a formal role to play in any national legislation. At present, the extent to which the current patchwork of localized initiatives will be replaced or supplemented by a more comprehensive, centralized federal approach is unclear. In addition to federal legislation, the role of the Clean Air Act in addressing climate change is under review following the Environmental Protection Agency's endangerment finding on GHGs.7 A centralized overall legal structure might serve well to complement, and in some cases enable or require, local climate change adaptation measures. Any laws and regulations that may be crafted are subject to limitations arising out of both the Federal and the New York State Constitutions. At the federal level, the Supremacy Clause of the United States Constitution provides that the laws of the United States are “the supreme law of the land,” the “laws of any state to the contrary notwithstanding.”8 Any state or local law that conflicts with, or attempts to regulate an area reserved to, federal law will be preempted. Moreover, any attempt at regulation ought to consider the Fifth Amendment, which prohibits the taking of private property for public use without just compensation.9 At the state level, consideration may be appropriate as to whether proposed legislation falls within the home rule powers of New York City under Article IX of the State Constitution10 and the Municipal Home Rule Law,11 or is otherwise preempted by state law. Any New York City laws and regulations intended to address adaptation to climate change will need to be carefully drafted to survive constitutional challenges, both on the state and the federal level.12 There is, however, considerable latitude in the constitutional framework to allow local action. New York City has local control over land use, zoning, building codes, emergency management, and other legal avenues that could be employed to foster adaptation. The New York City Mayor's Office of Long-Term Planning and Sustainability, with its established relationships with multiple stakeholders, is positioned to explore and foster the implementation of many adaptation solutions based on law and regulation. Because land use decision making in the United States is largely decentralized, New York City's control over land use within its borders can be exercised with close attention to the likely local impacts of climate change. Because of the City's general control over land use within its borders, and because this volume is a report about the City, this chapter emphasizes law and regulation within the City's control but it should be noted that laws at the state and federal levels must also play a significant role in adaptation. Moreover, although zoning and other land use regulations may generally affect future rather than current uses and so may not have as immediate an impact as other measures, the length of time in which climate change will take place means that zoning and land use regulations will affect an increasing proportion of land use. An important exception to the City's control of land use issues within its borders is the State's authority to regulate land use within tidal wetlands and their adjacent areas. The New York State Department of Environmental Conservation has authority over modifications to land or structures in this area, which can extend as much as 150 feet inward from mean high water. Many such modifications require discretionary permits. The anticipated effects of climate change, including adaptation measures to address the vulnerability of infrastructure, will likely affect the volume and type of such permit applications. While a detailed exploration of these State regulations is beyond the scope of this chapter, these provisions and the effects they may have upon adaptation efforts should also be evaluated. Land use planning is critical to the achievement of adaptation goals, and it is a major vehicle for improving resilience. Sea level rise may cause the permanent loss of land or otherwise impact (through storm surge and salt water intrusion, for example) important portions of New York City's land mass, requiring planning as to what, where, when, and how development could occur. Flooding is likely to increase with the expected increase in intense precipitation events; land use planning and other interventions can lessen the impact of such events. Appropriate land use measures can blunt the impacts of warmer weather resulting from climate change, and can soften increases in demand for energy in the hotter summer months ahead. Substantial interventions, such as the creation of defensive infrastructure, would likely require land use planning and review. Zoning, a principal method of regulating land use, determines the types of uses permitted in different districts and the relationships among the different districts. It sets the parameters for the sizes and shapes of buildings, the densities of the city's varied neighborhoods, and the streetscape. The process of land use planning and the development of the regulations contained in New York City's Zoning Resolution13 can be powerful tools in adaptation. Adapting to new conditions and policies is an integral part of planning. “As time passes, land uses change and zoning policy accommodates, anticipates, and guides those changes… Zoning is never final; it is renewed constantly in response to new ideas—and to new challenges.”14 Adaptation to climate change is such a new challenge. New York City's Zoning Resolution categorizes land in the city into one of three general districts: residential, commercial and manufacturing, and numerous subdistricts and Special Districts. The Zoning Resolution regulates, within each district, the bulk of structures allowed on a lot, the specific uses permitted on the lot, parking requirements, and signage allowed, among other things.15 Climate change is expected to produce an increase in annual temperatures and extreme temperature events, such as heat waves. These could cause an increase in peak electricity usage and resulting power outages and potential disruption of electrical service. Thermal maps and other data regarding the heat generated in different neighborhoods and energy usage by different types of facilities can provide vital information, not only to the utilities that plan and maintain energy infrastructure, but also to land use planners. Using this information, zoning regulations or other measures can be explored either on a targeted neighborhood or on a citywide basis to reduce air temperature and energy demand, and to reduce the likelihood of power outages. These measures can increase system resilience and help to adapt to climate change. Zoning regulations and other measures could help to reduce the temperature in a neighborhood. Streets are the most space efficient and one of the most cost-effective measures for reducing the urban heat island effect. Street tree planting requirements, which existed in certain residential districts and were extended to all zoning districts in 2008, require new developments and significant enlargements to plant street trees along their frontage. Neighborhoods that have very high heat quotients could be targeted for measures proven to reduce urban heat island effect, such as green and cool roofs (the latter of which is already required under new construction codes), green walls, vegetated open space, high-albedo surfaces, and enhanced energy efficiency to reduce heat exhaust from climate control, in addition to satisfying applicable building code requirements relating to energy efficiency and reduction of GHG emissions.16,17 Co-benefits can be derived from some of these measures, including increased use of insulating green roofs, which provide advantages for stormwater management, increase energy efficiency and reduce the heat island effect, which, in turn, enhances the reduction of energy demand. Those exploring these types of zoning provisions would need to consider how contributions of a given measure to heat island reduction could be assessed and verified for the purposes of administering them. It should also be noted that, while such measures are beyond the scope of this chapter, other non-zoning incentives may also be used to promote these types of features within areas with high heat quotients. Changes in the zoning regulations also can increase energy supply and reduce the likelihood of power outages, another instance of co-benefits, in which a policy measure can help both mitigation of carbon emissions and climate change adaptation. The Zoning Resolution currently limits the ability to install power substations and renewable energy resources, both of which would contribute to minimizing the number and scope of power outages. The Zoning Resolution allows power substations on an as-of-right basis only in commercial and manufacturing districts. They are allowed in residential districts only with a special permit.18 The special permit process is discretionary in nature; it formally involves the Community Board, Borough Presidents, and City Council. In this regard, an approach that targets the “heat reduction districts” on a citywide analysis, if feasible, may be more appealing than a site-by-site approach in providing information to local decision makers that can be integrated into their decisions as to whether to issue special use permits in residential districts. Modifications of the Zoning Resolution could foster the installation of alternative renewable energy resources, which would relieve the stress on the electricity grid that will be caused by the predicted climate change–related higher temperatures. Amending the Zoning Resolution to allow for the installation of solar energy panels, small wind turbines, and other innovative renewable energy and energy-saving mechanisms on the roof, above the maximum permitted height of a building or in the rear yard, while complying with safety and fire standards, would facilitate their installation.19 The supplemental power provided by these renewable energy resources might help avert a power outage or minimize its scope from a building or neighborhood perspective. Precipitation, flooding, and stormwater management are problems that demand correct and periodically updated information, including flood hazard and topographical maps. These could be based on future predictions and not just historical data regarding areas vulnerable to flood hazard and sea level rise. This regularly updated information is essential to guide the planners’ decisions regarding the appropriate zoning districts and regulations to reduce flooding and mitigate the impacts.20 As part of the implementation of PlaNYC, New York City released the PlaNYC 2008 Sustainable Stormwater Management Plan (SSMP),21 a comprehensive study of stormwater management. Stormwater management is generally regulated by the City's sewer code. However, to help reduce flooding and decrease the incidence of combined sewer overflow events and related pollution, provisions that promote or facilitate on-site stormwater management could be incorporated throughout the Zoning Resolution. Increasingly, the Zoning Resolution recognizes the importance of vegetated and pervious surfaces where it is feasible to assist in stormwater management.22 Changes to the Zoning Resolution could be explored to increase the percentage of open space on a lot that is required to contain vegetated surfaces or surfaces composed of pervious materials; green roofs and green walls can be encouraged by allowing greater flexibility for green roofs to qualify as open space, or by allowing more flexibility in the building envelope to allow the space required to accommodate green roofs and green walls. Recent amendments to the text of the Zoning Resolution upgraded design standards applicable to yards, plazas, esplanades, and tree plantings to further encourage23 plantings and permeable surfaces. Extension of similar planting standards to other required “open space” can be explored. The Zoning Resolution could provide additional flexibility for buildings in flood-prone areas to provide “freeboard” (additional elevation of the finished floor level above the FEMA Base Flood Elevation-BFE). Currently, for buildings in flood zones within most districts, the base plane from which building heights are measured is established at the FEMA BFE. Buildings providing freeboard can earn discounts on their flood insurance; however, they are subject to the same zoning height limits as buildings that do not. Allowing additional height commensurate with the freeboard provided would eliminate this disincentive for improved flood resistance. Regardless of the amount of Floor Area allowed, consideration could be given to having the Zoning Resolution restrict the use of basement and ground floor space, and to addressing the location of mechanical and safety equipment in flood prone districts. Emergency generators could be required to be located above flood hazard levels. The Zoning Resolution could selectively bar certain uses of vulnerable populations (such as nursing homes) from these floors. It could require on-site evacuation plans and equipment. Although these appear to be building code issues, the Zoning Resolution could be amended if these requirements displace other uses that must be located on certain floors of the building, cause the height of a building to be increased above an applicable limit, or result in a loss of Floor Area. There are several substantial initiatives under way in New York State relating to sea level rise in addition to New York City's efforts. The New York State Energy Research and Development Authority (NYSERDA) has sponsored the ClimAID study, a statewide assessment of adaptation potential, including coastal adaptation measures for sea level rise and storm surge. A New York State Sea Level Rise Task Force has been created by act of the New York State Legislature24 to protect New York's coastal ecosystems and natural habitats and increase coastal community resilience in the face of sea level rise. Good planning and cost-effective steps taken now as new development takes place or properties are retrofitted with regard to climate change predictions can prevent significant losses in the future.25 Effective stormwater management is vital, and land use and building code regulations that protect property and life can be established. To the extent that such regulations restrict uses below the design flood elevation, applicable height limitations, if they exist, can be increased. The Federal Coastal Zone Management Act26 calls for state implementation of coastal zone management plans and provides the backbone for state and local planning and regulatory action in coastal areas. The 1990 amendments explicitly reference potential sea level rise as a factor that should be “anticipated and addressed” in the state plans prepared.27 In New York State, the Department of State oversees the plan and implements it by means of the Local Waterfront Revitalization Program pursuant to which New York City has authority to prepare its own plan.28 In New York City, the Department of City Planning is responsible for this effort and is currently in the process of reviewing and revising the City's Comprehensive Waterfront Plan and its Local Waterfront Revitalization Program. These plans could be revised with an eye toward the possibility of climate change–related coastal flooding. The prospect of rising sea levels has brought about a national discussion as to what coastal developments should be permitted and how they should be built. The basic choices can be summed up in the following words: “armor, elevate, or retreat.”29 These options can be applied individually or in combination, and decisions about these approaches should carefully consider the context of the area and the consequences of alternative courses of action. Increased intensity or density of development increases the number of people that are located in a flood-prone area. This may lead to increased flooding impacts as well as increased complexity in responding to an emergency. However, replacing older, non-flood-resistant construction with newer, flood-resistant construction, even at higher densities, and potentially in conjunction with shoreline protection measures, can improve overall resilience. In addition, the replacement or relocation of existing fixed infrastructure and established communities may be challenging or infeasible. The risks posed by climate change do not necessarily dictate that the city should retreat from highly populated and developed areas or avoid all development in areas where flood risks exist. However, approaches to land use regulation in the future should consider a range of options for managing these risks, such as establishing or increasing buffer areas between flood-prone waterfront and new development, as well as considering whether and how new development could improve the area's resilience to flooding events. In areas of greatest risk and vulnerability to sea level rise, stricter restrictions on development or permitted uses could be considered.30 While perhaps not widely feasible in New York City, zoning and land use policies can be changed to provide for a systematic retreat from vulnerable areas to allow for migration of beaches and the creation of replacement natural wetlands in coastal areas that are not already built up.31 Finally, while not part of zoning regulation, planners have other land use measures at their disposal. While again perhaps feasible only in a limited number, if any, of locations in New York City, rolling easements have been enacted in a few jurisdictions that prevent property owners from holding back the sea but otherwise do not alter what they can do with the property; as the sea advances, the easement automatically rolls landward thus permitting the creation of new wetlands and preserving public access to the shore. The private owner can develop and use the land as long as it is above sea level and can plan accordingly.32 Whether such easements must be paid for or belong to the government as part of the public trust is an open issue. The coastal development permit program, run by the New York State Department of Environmental Conservation (DEC), in concert with the NYC Department of Building guidelines, regulates construction procedures and other activities that may contribute to increased coastal erosion. Permits are a traditional mechanism for regulating all aspects of project development from planning and siting through operation and maintenance—construction, structural modification, wastewater discharges into coastal areas, floodplains, wetlands, and other environmentally sensitive areas. Adjusting permit criteria to reflect anticipated climate change impacts could significantly decrease vulnerability. The National Environmental Policy Act (NEPA),33 the New York State Environmental Quality Review Act (SEQRA),34 and the City Environmental Quality Review (CEQR)35 (Fig. 5.1) are laws that could address climate change adaptation across sectors at the federal, state, and city levels. NEPA requires the preparation of an EIS for “major Federal actions significantly affecting the quality of the human environment,” and the EISs must address not only direct effects, but also indirect effects that are reasonably foreseeable. Many states, including New York with SEQRA, have enacted “little NEPAs” creating similar requirements for many governmental actions on the state and local levels. New York City developed its own additional procedural requirements with CEQR. The New York City Environmental Quality Review Technica